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Civil Petition for Special Leave to Appeal No. 367 of 1979, decided on 14th May 1979.
(On appeal from the judgment and order of the Lahore High Court dated 10-3-1979 in S. A. O. No. 138 of 1979).
----S. 13(2) (iv) read with Constitution of Pakistan (1973), Art. 185(3)-Concurrent findings-Both Courts below finding tenant having removed intervening wall between two portions of property and thereby caused damage to property and impaired its value-Finding, held, could not be said to be based on no evidence or being result of misread ing of evidence and petition for leave to appeal liable to dismissal. [Evidence].
M. Ahmad Hasan Khan, Advocate assisted by Mahmood A. Qureshi, Advocate- on-Record for Petitioner.
Respondent in person.
Date of heating : 14th May, 1979.
The dispute in this case concerns a shop situate on Poonch Road, Samanabad, Lahore, which was taken on lease by the petitioner Fayyaz Ali Khan from the respondent Haji Muhammad Sharif on a monthly rent of Rs. 225 by means of a written lease deed in January, 1973. On the 14th of March, 1977, respondent filed an application before the Rent Controller, for the ejectment of the petitioner on the ground of default in the payment of rent since April, and also for the reason that the petitioner had caused damage to the property by removing an intervening wall which had separated the two portions of the shop. The application was rejected by the learned Rent Controller by his order dated the 10th of November, 1977, holding that the rent of the property was, in fact, Rs. 200 per mensem, although an amount of Rs. 225 per mensem was mentioned in the lease deed that there had been no default in the payment of rent sand that the allegation of causing damage was also not proved. However, these findings were reversed in appeal by the learned Additional District Judge by his judgment dated the 8th of January, 19.79. The second appeal filed by the petitioner has been dismissed by the High Court on the 10th of March, 1979. He now seeks leave to appeal.
It is contended by Mr. Ahmad Hasan Khan, learned counsel for the petitioner, that the findings of fact recorded by the learned Additional District Judge on both the relevant issues are not based on evidence, or at any rate they are the result of misreading of evidence and the learned Additional District Judge was also in error in ruling out of consideration certain documents like money orders and their receipts, which had been admitted in evidence by the Rent Controller. He contends that the lease deed was, in fact, not acted upon, and all along respondent-landlord had accepted the fact that rent was Rs. 200 per mensem. He further contends that the learned Judge in the High Court is also in error in thinking that rent had not been paid beyond the month of November, 1976.
We do not see any merit in these submissions. We find that there is, indeed, a lease deed (Exh. 8-1), according to which the monthly rent agreed upon between the parties was Rs. 225 per mensem and that on the receipts issued by the landlord for the amount of Rs. 200 paid by the petitioner every month, it was recorded that the amount was being received under protest. It follows, therefore, that the landlord had not agreed to reduce the rent to Rs. 200 per mensem, and kept on recording his protest every month as the petitioner paid rent at a lesser amount than the one agreed upon. In this state of the record the learned Additional District Judge was right in recording the finding that there had been default in the payment of rent, as the full and actual rent was not paid at all by the petitioner. The learned Judge in the High Court was right in upholding this finding, and no justification is made out for our interference with the same. On this short ground alone it is clear that the petitioner was defaulter in the payment of rent, and it is not necessary to enter upon any discussion of the question whether the was default in the payment of rent after November, 1976, when the petitioned alleges that he started depositing the same in Court. On this finding alone, the petitioner would be liable to ejectment. However, the landlord's evidence that the petitioner had unilaterally removed the intervening wall separation the two portions of the shop also stood un-rebutted on the record, and on its basis both the Courts below have recorded a concurrent finding that the petitioner had, indeed, caused damage to the property and impaired its value. We do not see how this finding can be said to be based on no evidence, or being as a result of misreading of evidence.
On this view of the matter it stands established that the petitioner had rendered himself liable to ejectment. The present petition, accordingly, fails and is hereby dismissed.
However, he is allowed one month's time to put the respondent in possession.
Appeal dismissed.
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